Breaking In: The Rise of Sonia Sotomayor

by Joan Biskupic

  When they did, the Ricci case would not only highlight the conflicts between two jurists and friends, both of Puerto Rican heritage, but also would exemplify Sotomayor’s other allegiances on the Second Circuit. Rosemary Pooler, the senior judge on the Ricci panel, had become a dear friend. They were among the first women ever to sit on the New York–based federal appeals court. Two other Second Circuit judges who would later go out of their way to support the three-judge panel’s decision had deep ties with Sotomayor, too.

  * * *

  As the Second Circuit wrestled with the Ricci case internally, Democrats Hillary Clinton and Barack Obama, the strongest female and African American contenders ever to vie for the U.S. presidency, were in a tight battle for the party’s nomination. If either Clinton or Obama ended up taking the White House, any subsequent Supreme Court vacancy would likely generate a renewed interest in diversity. President George W. Bush’s two appointees were white men (John Roberts and Samuel Alito), and the High Court was at this point made up of eight men and one woman. All were white except for Clarence Thomas. There had never been a Hispanic appointee, and on any list of possible candidates could be the fifty-three-year-old Sotomayor—a fact not lost on people inside and outside the Second Circuit.

  The judges knew the Ricci case could take on greater prominence because it dealt with issues of race and diversity, and because Sotomayor was in the middle of it. As it progressed up toward the Supreme Court, commentators focused on Sotomayor’s role and the disagreement between the two prominent Puerto Rican jurists. Cabranes would reject any suggestion that he was trying to call specific attention to Sotomayor and hurt her chances at a time that she might be under Supreme Court consideration. This was the spring of 2008, he would observe, and who knew what would transpire with the presidential election or future Court vacancies.3

  Then age sixty-seven, Cabranes was no longer a rival to Sotomayor in the Supreme Court sweepstakes. He was probably too old to be considered for elevation after the election. Age might have contributed to their dueling views on government-imposed racial remedies, too. Cabranes rose to prominence in the legal profession before affirmative action was common, and he was often the lone Latino in places of power and prestige. For Sotomayor, fourteen years made a huge difference, allowing her to ascend with a class of, as she would say, “affirmative action babies.”

  Since her days at Princeton, Sotomayor had lived with the dilemmas and resentment raised by the Ricci case. She had climbed the ladder of the law not just because she was smart and worked hard but because people in positions of power (including Manhattan district attorney Robert Morgenthau and U.S. senator Daniel Patrick Moynihan) sought to hire and promote blacks and Hispanics. Sotomayor understood that she was sometimes chosen over white candidates because of her ethnicity, but she objected to contentions that she was not as qualified or as competent because of the boosts she received. She believed she was chosen because she had vaulted herself over academic and professional hurdles that most people, regardless of their color or ethnicity, could not.

  Many Americans disagreed with her on the larger issues. They viewed the antibias initiatives begun in the 1960s as discrimination against whites rather than as important ways to help qualified minorities. The white firefighters in New Haven said that the city’s decision to toss the test results perpetuated the very practice of racial discrimination it was seeking to eradicate.

  For decades, cities like New Haven had struggled with the legacy of race discrimination in municipal fire and police departments. The question was to what extent municipalities could act to ensure new diversity. For the judges who reviewed New Haven’s actions, the answers came down to the racial disparity of the test results and the city’s real reasons for throwing them out.

  The dilemma involved two parts of Title VII of the 1964 Civil Rights Act. One section, aimed at intentional discrimination, forbade employers from hiring or promoting someone based on race or sex, which is known in the law as “disparate treatment.” Another section banned employers from using a test or other practice that caused a “disparate impact” on the basis of race or sex unless the practice was related to the job. These dual mandates put the city of New Haven in a difficult position. The white firefighters sued under the first part, saying they were being denied score-based promotions because of race. Black firefighters had threatened to sue under the second part of Title VII, based on the disproportionately poor scores and their diminished chance for promotions.

  Allowing Title VII challenges to the discriminatory effects in hiring, as opposed to those aimed at discriminatory intention, flowed from the federal understanding that employer practices may appear neutral but actually arise from hidden bias. Under past Supreme Court cases, a key question in the analysis was whether a screening test was actually necessary for legitimate, nondiscriminatory business reasons. If not, such a test might derive from structural racism and an implicit desire to keep minorities out of management positions.

  A Title VII claim based on a statistical imbalance did not require a showing of discriminatory intent for a plaintiff to prevail. The lower threshold for such lawsuits troubled conservative judges who believed that America had moved beyond its racist past and should focus on remedying only specific instances of bias.4 Opposition to such group remedies had been simmering for several years on the High Court. In 2007, Chief Justice John Roberts had revealed little patience for public school assignment plans that considered students’ race to ensure district-wide diversity: “The way to stop discrimination on the basis of race,” he wrote, “is to stop discriminating on the basis of race.”5

  But such a color-blind approach was not so easily carried out in municipal fire stations, including in New Haven, where even in the 2000s blacks and Hispanics were rare in the fire department’s command positions although they comprised about 60 percent of the population. There was considerable debate over how well pen-and-paper tests even measured leadership in firefighting. Perhaps, some suggested, simulations that tested applicants’ judgment under pressure were better. Eventually it would fall to Supreme Court justice Ruth Bader Ginsburg, not Sotomayor or the other Second Circuit judges who had considered the case, to declare, “Relying heavily on written tests to select fire officers is a questionable practice, to say the least.”6

  When the tests were given in New Haven, 118 applicants took the written and oral exams in hopes of being promoted to captain or lieutenant. Of the 41 firefighters applying for captain, 25 were white, 8 were black, and 8 were Hispanic. In the end, no blacks and 2 Hispanics scored high enough to be eligible for promotion. Of the 77 firefighters who sought promotion to the rank of lieutenant, 43 were white, 19 were black, and 15 were Hispanic. For this rank, no blacks or Hispanics scored high enough to be considered.7 The city’s lawyer told the board that the scope of the statistical disparity could lead to a claim of racial discrimination. A representative from the black firefighters association argued against certification, as did a vocal African American minister who was an important vote-getter for Mayor John DeStefano. The New Haven Civil Service Board deadlocked on certification, which prevented the results from being used to determine promotions.

  Frank Ricci, who is white, took the lead in suing DeStefano and other New Haven officials over that 2004 decision against certification. Ricci said he had studied up to thirteen hours a day to prepare for the lieutenant test. Because he was dyslexic, he had paid an acquaintance more than a thousand dollars to read the books onto tapes. He said he studied harder than he ever had. “Reading, making flash cards, highlighting and reading again all while listening to prepared tapes,” he recalled of his study habits. “I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.” Another firefighter, Benjamin Vargas, the only Hispanic in the group of challengers, said he gave up a part-time job while he prepared for the exams and that his wife took a leave of absence from her job to care for their three children while he
studied.8

  At their first stop in federal court, the firefighters’ claims failed. U.S. district court judge Janet Bond Arterton ruled that the city acted properly by discarding the test results. Judge Arterton said that officials justifiably worried that an insufficient number of minorities would be promoted if the test results were certified, exposing the city to a disparate-impact lawsuit. She rejected the white firefighters’ arguments that the city required more proof that it faced a possible lawsuit based on flaws in the exams. Arterton, a 1995 appointee of President Bill Clinton’s, concluded that officials need not pinpoint deficiencies or offer a better test if they decide against certification.9

  * * *

  By the time the firefighters appealed Arterton’s ruling, Sotomayor had been a member of the Second Circuit for nearly a decade. Much had changed in her life. When she was sworn in to the New York–based federal appeals court, she was engaged and looking forward to marrying New York construction contractor Peter White, whom she had been seriously dating for four years. Before an investiture audience of a thousand people at the federal courthouse on Pearl Street in Manhattan, Sotomayor had spoken tenderly about how White had kept her spirits up as the appeals court nomination dragged on for months. But their romance ended soon after she took her spot on the appeals court in late 1998. “Not every relationship ends with such mutual respect and dignity as Kevin and I somehow salvaged from our youthful mistakes,” she would later write, referring to her 1983 divorce from Kevin Noonan. “I would discover what it is to go down in flames romantically, disappointment that shakes your foundations.”10 After her relationship with White ended, Sotomayor settled alone into her Greenwich Village condo and found comfort in her vast networks of friends.

  One of those friends was Rosemary Pooler, who would preside when the three judges heard the Ricci case.

  Sixteen years older than Sotomayor, Pooler was a veteran of Syracuse city and New York state politics. She had served on the Syracuse common council, held a state consumer-protection post, and run unsuccessfully for Congress in the late 1980s. She had strong political instincts and a protective fondness for Sotomayor, whom she called “Toots.” The two women often dined out after sitting together on court panels. When Sotomayor made the four-hour trip up to Syracuse to see her brother, Juan, and his family, she made a point of visiting Pooler, who lived there, too.

  The third judge on the Ricci court, Robert Sack, had been in private practice, specializing in press law, before his 1998 appointment. He had first come into the orbit of the Clintons in 1974 when he worked with Hillary on the U.S. House of Representatives special impeachment inquiry related to President Richard Nixon and the Watergate scandal. On the day of the Ricci oral arguments, in December 2007, Sack was out ill. He caught up with the written briefs and a tape of the hearing.

  For the oral arguments in the Manhattan courtroom, the firefighters wore their dress uniforms. Karen Torre added to the drama by lugging in stacks of textbooks the firefighters had used to study for the promotional exams.

  As soon as Judge Pooler opened the session, Sotomayor launched into her trademark hard-hitting approach. Since her days at Yale, she had heard criticism that she was overbearing. But the former student debater offered no apologies. This was simply the way she was. During oral argument she often talked over her fellow judges and interrupted lawyers as they tried to answer her barrage of questions.

  In Ricci v. DeStefano, she did not wait for lawyers to answer her initial questions before she fired off additional queries. And, as was her practice, she referred to herself as she asked a question: “My problem with your … cause of action is…,” she said as she aimed one line of inquiry at Torre. When Sotomayor felt she had not gotten an answer, she would say, “You beg my question.”11

  Yet her queries cut to the core issues in the case. “Can a state ever look at its practices to ensure there’s no adverse impact?” she asked Torre, who insisted that any review based on race was forbidden and that, by doing so, the city had treated men seeking promotions as “garbage collectors” whose jobs did not require special skills.

  “This is a command position of a first responder agency,” Torre said. “The books you see piled on my desk are fire-science books. These men face life-threatening circumstances every time they go out … This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy…”

  Sotomayor bristled. “We’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?” Moving past her impatience with what she believed was exaggerated rhetoric on Torre’s part, Sotomayor said, “But if your test is always going to put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?”

  Torre said that the city had, in fact, developed a fair test, verified by the outside consulting company. Sotomayor was not sympathetic. “It assumes the answer is … the test is valid because we say it’s valid.”

  When Richard Roberts, the lawyer for New Haven’s city officials, took his turn at the podium, Sotomayor was equally confrontational: “You haven’t told me…,” she said. She also homed in on a key issue—the validity of the test—telling Roberts, “If you’re going to say it’s unfair, point to specifics, of ways it wasn’t, and make sure that there really are alternatives.”

  Pooler said later that Sotomayor’s style of questioning never bothered her. “When I sat with her, I always found it worthwhile to hear her questions. I always thought that she made such a valuable contribution. She is what she is.”12

  * * *

  In the weeks that followed the Ricci hearing, Sotomayor, Pooler, and Sack could not agree on how to resolve the thorny case. Sotomayor agreed with district court judge Arterton that the varying pass rates among racial and ethnic groups posed a problem. She also thought the city had a good argument that it was following what the law required. Judge Sack was more ambivalent about Arterton’s approach and resisted signing on to an opinion affirming her rationale.

  A substantive compromise eluded them, and it would not have fallen to Sotomayor to broker a deal. This was an area of the law she knew well, certainly. And she had strong views on racial and ethnic policy. But she had generally kept them quiet. And in terms of persuasive force, some judicial colleagues said later that although Sotomayor was clear in making her own opinions known, she was not apt to influence colleagues whose legal views differed from hers.

  The Second Circuit judges would not disclose all that went on behind the scenes. Speaking generally, Pooler described Sotomayor as a judge who steeped herself in the facts and the law of a case. She said she could sometimes hold tight to her position, wondering of colleagues, “Why can’t you see it?” Yet in these years as an appeals court judge, Sotomayor was cautious and not known for heated dissents or splitting off from her colleagues.

  At the time of the Ricci case, Sotomayor had already written hundreds of opinions, most falling into the run-of-the-mill center of federal court rulings: solidly written and hewing to precedent. She leaned to the left but not reflexively so. The Supreme Court reversed few of her opinions. In general assessments of her work, the American Bar Association and the Congressional Research Service would characterize her opinions as well reasoned and well organized.13 The American Bar Association screening committee in 2009 said that some of its members criticized her opinions as “less than imaginative, lacking in flourishes, and lengthy,” adding, “these criticisms are about writing style, not substance.”14

  Sotomayor had shown similar competence as a U.S. district court judge. During the seven years she spent overseeing trials in Manhattan, her most high-profile action came in a labo
r dispute in the nation’s long-running Major League Baseball strike of 1994 and 1995. Sotomayor ruled in favor of the players by granting a National Labor Relations Board request for an injunction temporarily restoring the terms of an expired collective bargaining agreement. In her order ending the 232-day strike, she required team owners to reinstate lapsed provisions of their earlier contract, including salary arbitration and competitive bidding. The order gave the two sides an incentive to return to negotiations, which eventually produced a deal.15 Baseball fans across the United States and in Canada cheered her. The Globe and Mail newspaper wrote that Sotomayor “moved into the early lead for an MVP award” and the New York Daily News said, “The judge who ordered baseball to clean up its act knows her game.”16

  Sotomayor’s opinions typically included a long recitation of the facts, a listing of all arguments, and a lengthy explanation of the applicable law. But that was not going to happen in the firefighters’ dispute. After several weeks and insufficient unity to issue an opinion on the law, Judges Pooler and Sotomayor thought the best course was a brief summary order affirming the lower court judge but not establishing any Second Circuit precedent for future cases. Judge Sack eventually went along. It was a big case, but the only way they could resolve it was by acting as if it was small and sidestepping a precedent-setting opinion.